Rust v. State

• Decision Date: 11 June 1892
• Citation: 19 S.W. 763
• Parties: RUST v. STATE
• Court: Texas Court of Appeals

19 S.W. 763

RUST v. STATE

Court of Appeals of Texas.

June 11, 1892.

Appeal from Travis county court.

Dan Rust, alias H. Burst, was convicted of burglary, and appeals. Affirmed.

R. H. Harrison, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Separate indictments were presented by the grand jury, charging appellant with burglary and theft. When placed upon his trial for burglary, he, in addition to his plea of not guilty, interposed his plea of former conviction for theft in bar of this prosecution for burglary. A bill of exception contained in the transcript discloses that exceptions to this special plea were sustained upon the ground that the conviction for theft did not bar this prosecution for burglary. The record contains no order or judgment of the court showing the disposition of the plea. It is sought to perpetuate this ruling of the court by the bill of exceptions. Our Code of Criminal Procedure provides that, "on the trial of any criminal action, the defendant, by himself or counsel, may tender his bill of exceptions to any decision, opinion, order, or charge of the court or other proceeding in the case, and the judge shall sign such bill of exceptions, under the rules prescribed in civil suits, in order that such decision, opinion, order, or charge may be revised upon appeal." Code Crim. Proc. art. 686. In civil suits it is well settled that all judgments, orders, and decrees must be entered of record in courts of record. Davidson v. Murphy, 13 Conn. 213; Meeker v. Van Rensselaer, 15 Wend. 397; Jones v. Walker, 5 Yerg. 427; Boker v. Bronson, 5 Blatchf. 5; Packard v. Bird, 40 Cal. 378; Freem. Judgm. § 84. Article 1107 of the Revised Statutes requires that the clerk of the district court shall "keep a fair record of all acts done and proceedings had in their respective courts; they shall enter all judgments of the court, under direction of the judge, and shall keep a record of all executions issued and of the returns thereon, in record books to be kept for that purpose." The minutes of the proceedings of each preceding day of the session of the court shall be read in open court on the morning of the succeeding day, and at the end of the term shall be read and signed by the judge in open court. Rev. St. art. 1129. By the terms of the statute, "all judgments of the court shall be entered of record." While interlocutory judgments are not expressly mentioned, yet they are evidently included under the general expression "all judgments." Freem. Judgm. § 84; Packard v. Bird, 40 Cal. 378. While our statute provides that bills of exception may be reserved to "any decision, opinion, order, or charge of the court or other proceedings in the case," yet that provision does not avoid the necessity of the record of such decision or order of the court. It rather conveys the idea that such recited orders, opinions, decisions, and judgments should be entered of record in the minutes of the court. It does not convey the idea that an order, decree, or judgment may or can be perpetuated by a bill of exceptions. While a bill of exceptions may be taken to the ruling of the court upon demurrer, yet it has not been held that such bill was or is necessary. Pizano v. State, 20 Tex. App. 139; Hamlin v. Reynolds, 22 Ill. 207; Bank v. Buckingham, 12 Ohio St. 402; Pow. App. Proc. p. 211, § 3; Id. p. 215, § 9, and notes. One of the rules prescribed by our supreme court for the government of the district court provides that under such circumstances no bill of exceptions shall be taken to the ruling of the court. Dist. Ct. Rule 53. In fact, this rule seems to be one of universal practice, in so far as we are advised, and a judgment on an exception or demurrer is as much a part of the record as any other judgment, decree, or order that may be rendered in the case, and by the modern practice is final, unless the party pleads over or amends. Hamlin v. Reynolds, 22 Ill. 207; Bank v. Buckingham, 12 Ohio St. 402; Pow. App. Proc. p. 211, § 3; Id. p. 215 § 9. Plea of former conviction or former jeopardy is a written pleading in a criminal case, and the judgment of the court sustaining a demurrer thereto is final, and eliminates the plea from the cause unless amended. The transcript in this cause fails to show the entry of a judgment of the court sustaining the exceptions urged...